Corlies v. Cummings

7 Cow. 154 | N.Y. Sup. Ct. | 1827

Curia.

We think the commissioner erred in the first and second points of decision. We are not in the habit of scanning cases so critically, when presented for taxation. A party should be allowed to. spread .everything on the case which is reasonably necessary to a history of the cause at the circuit; so as to raise the • points, and exhibit the views arising upon it. The evidence as to the ground not taken by the jury, might or might not be necessary. The counsel could not say whether it would turn out to be material or not. He supposed it might; and in good faith proposed its insertion. Its insertion was sanctioned by the circuit judge, without objection by the opposite counsel at the time. If this part of the case was really objectionable, as mere surplusage, he should have made that a.point before the judge who settled the case, by proposing its exclusion in his amendments, or otherwise. The plaintiffs’ counsel acted in good faith; and it is too late now to raise the objection.

So, as to the testimony upon which the plaintiffs made mistaken points. It is dealing very nicely with counsel to strike out all the matter except that particular part sustaining *the valid point. Counsel are right in raising several points according to their own notions of their client’s rights: and it does not follow of course, that because any of them are overruled, the foundation on which they were raised, will be laid out of view in taxation. If it be seen that they have acted fairly and discreetly; which, indeed, should be intended till the contrary appear ; their success upon one point should carry the costs as to all.

The figures were usefully inserted; and we direct that they be taxed at one word for each figure.

On the fourth and fifth points, the commissioner was right. There was no material variance between the deposition as read, and that inserted in the case; and in respect to these, it could not be considered as a draft. The plaintiffs were bound to know that both the case and bills of exceptions would not be proceeded upon.

As to the charges of executing the commission, there was a decision, (Kenney v. Van Horne, 2 John. 107,) against their allowance. But the statute of 1813, (2 R. L. 15,) is broader than the one upon which that decision proceeded ; and we think warrants the taxation of these charges. The old statute allowed costs for certain specific drafts and copies, and other necessary entries. (2 K. & R. 72.) The words of the act of 1813 are, entries or proceedings in a cause, according to the course and practice of the court. (2 R. L. 15.) The depositions were a necessary proceeding in the cause, within the act. We allow this portion of the bill, therefore; but not exceeding $87 50. The parties joined m the commission; one halt the charges ot execution being fixed at that sum.

The orders for time were to accommodate the plaintiffs; and were properly disallowed on that ground.

Buie accordingly.